(Court of Appeal, Moore-Bick VP, Longmore, Black LJJ, 11 October)
Abduction – Return order by consent – Mother and child granted asylum – Weight to be given to refugee status – Appeal from return order – PD12J FPR 2010
The mother’s appeal from the enforcement of a return order was allowed and the case was remitted for rehearing.
The mother brought the 10-year-old child to the UK and failed to return to Saudi Arabia where they had been living. The father initiated wardship proceedings and sought the child’s return to Pakistan where they had previously lived. The child was not made a party to the proceedings.
The mother and child had applied for asylum in the UK but at the final hearing the mother agreed to return to Pakistan subject to certain undertakings and undertook herself to withdraw the claims for asylum. However, the mother failed to comply with the order. The father sought to enforce the order while the mother sought for it to be set aside or varied on the basis that she had not consented to the terms upon which it had been made.
The mother and child were subsequently granted asylum. The decision maker was satisfied that the mother had given a credible and consistent account of ill-treatment by the father. It was also relevant that the mother would be a divorced and single mother upon her return to Pakistan. There was also the possibility that the mother and child might be separated and concern that the father wished his son to fight in Syria. It was, therefore, accepted that the mother had a well-founded fear of persecution and there would be a real risk of her and/or her son being subjected to serious harm contrary to Art 3 of the European Convention.
The mother submitted that the grant of asylum constituted a change of circumstances which justified the setting aside of the return order. The judge rejected that assertion, dismissed the mother’s application to set aside the order and granted the father’s application for enforcement. The child’s return was ordered. The mother appealed.
The appeal was allowed and the case was remitted for rehearing.
In this instance there had been insufficient weight given to the question of the child’s asylum claim and refugee status. In considering whether there had been a change of circumstances the judge had failed to consider the child’s welfare. Since the mother’s application was in wardship for a variation of the return order, the child’s welfare was the governing consideration. In consequence the order had to be overturned.Furthermore, with regard to Practice Direction 12J of the Family Procedure Rules 2010 (Child Arrangements & Contact Order: Domestic Violence and Harm) considerable caution was required in the circumstances of this case. Since the mother had agreed to the consent order, the child should have been made a party to the proceedings to ensure his interests were properly protected.